Court File and Parties

Court File No.: CV-16-69256 Date: 2022-02-14 Superior Court of Justice - Ontario

Re: Mélanie K.A. Dulude, Plaintiff And: Stuart Lawrence personally and as Estate Trustee for the Estate of Gail L. Lawrence, Defendants

Before: The Honourable Justice C.T. Hackland

Counsel: Najma M. Rashid and Eric Dwyer, for the Plaintiff A. Charles Gluek, for the Defendants

Heard: February 10, 2022 (by videoconference)

Endorsement

Introduction

[1] This is a motion and cross-motion for productions in a motor vehicle personal injury case scheduled for trial in several weeks. This accident occurred in 2014 and was a rear-end collision so the matter is proceeding as an assessment of the plaintiff’s damages. I gather there are issues as to the plaintiff’s credibility, allegations of malingering, a good deal of intrusive surveillance evidence and other contentious issues. The issues in this motion could and perhaps should be left to the trial judge but instead are directed to me in the hope of avoiding the wasting of trial time and perhaps promoting the possibility of settlement.

[2] The plaintiff seeks productions relating to the medical experts’ reports served by the defendants and in relation to the defendants’ surveillance evidence. The defendants seek productions of documents in the possession of plaintiff’s counsel from a previous action the plaintiff brought against her disability insurer Great West Life, which has recently settled.

Files of Soma Medical Assessments

[3] The plaintiff seeks the complete file in the possession of Soma Medical Assessments, in relation to defence medical assessments performed by three defence medical experts whose reports have been served. Soma arranged these defence medical assessments on behalf of defence counsel. Alternatively, plaintiff’s counsel would be content to receive some written assurance along the lines of an observation in Dr. Shanks’ report, which is a defence medical report not obtained through Soma. Dr. Shank’s observation was to the effect that he has had no assistance in the preparation of the report other than for typing, and that no other individual has played a part in reviewing the file, conducting the examination or preparing the report.

[4] Plaintiff’s counsel concedes she has no evidence of any interference or impropriety on Soma’s part in the preparation of these expert’s reports but sees this line of inquiry as due diligence and offers to provide similar assurances from the firm who arranged for the plaintiff’s expert reports. Counsel says this information is not subject to litigation privilege because the information is in the hands of a third party (Soma). She concedes draft reports in Soma’s possession are subject to litigation privilege and does not include any such drafts in her request.

[5] This request is refused for the following reasons. It is a complete fishing expedition, unsupported by any basis for suspecting any interference with the expert’s duties by Soma or anyone else. Counsel has not sought leave to seek this relief, which is required as the matter was set down for trial over two years ago at which time there is an undertaking not to bring further motions. Also, assuming the Soma files are under defence counsel’s control (which I doubt), they are subject to litigation privilege as the reports were obtained and the related administrative activities were undertaken for the purpose of litigation. One does not have to be a lawyer or part of a law firm to be entitled to claim litigation privilege. Defence counsel may or may not call defence medical evidence at trial from any of the 3 experts recruited by Soma. However, if he does so, litigation privilege is deemed to be waived and this line of inquiry may be pursued at trial, subject always to any rulings by the trial judge.

Private Investigator

[6] The plaintiff also seeks production of further documentation relating to the defendant’s proposed surveillance evidence. The court was advised that defence counsel has already produced to the plaintiff all of the surveillance videos and related reports from the investigators in his possession. The plaintiff contends that the videos produced are edited and there are further videos or unedited film. Also sought are the instruction letters from counsel to the private investigator, the investigator’s logs and the names of the persons who carried out the surveillance. Defence counsel contends the material sought is subject to litigation privilege and these matters can be inquired into at trial in the event that the defence chooses to introduce or utilize any of the surveillance evidence. The plaintiff explains that she is interested in ascertaining how the private investigator has obtained personal information appearing in the surveillance reports that were produced, including private information pertaining to her three children. Counsel advise the defence has already produced documentation they have in their possession about the plaintiff’s family law proceedings.

[7] I order that the information sought by the plaintiff from the private investigator is to be obtained by defence counsel and produced (unless there is an undertaking not to call this evidence). There appears to have been a significant ongoing intrusion on the privacy of the plaintiff and her family on the part of the private investigators, which may or may not be justified, and can be a matter addressed before the trial judge. I agree that this information and documentation is prima facie subject to litigation privilege but the court has the discretion to waive the privilege in the face of competing public policy considerations, and I do so. The Court of Appeal has explained that surveillance evidence must be scrutinized carefully and not used to ambush a plaintiff unfairly and must be produced well in advance of trial, see; Iannarella v. Corbett, 2015 ONCA 110 and Nemchin v. Green, 2019 ONCA 634.

Deemed Undertaking (Rule 30.1) and the Great West Life Disability Claim

[8] The defendant seeks further documentation from the recently settled action the plaintiff pursued against her disability insurer Great West Life. The defendant has most of the potentially relevant information from that proceeding but also seeks production of the disability insurer’s affidavit of documents and supplementary affidavit of documents as well as a copy of the transcript of the examination for discovery of the insurer’s claims representative and copies of the answers to undertakings in that proceeding. Defence counsel submits the requested documents are in the plaintiff’s counsel’s possession, which I believe is admitted.

[9] The plaintiff opposes production of this information on the basis of the deemed undertaking rule (Rule 30.1) and on the basis of an issue estoppel from a prior court ruling. I do not give effect to these arguments. The plaintiff’s disability claim against Great West Life and her current tort claim both focus on the plaintiff’s medical condition and her ability to function and earn income and related medical and psychological issues. The issues are so similar that trial fairness requires that the defendant should have access to the documentation in the disability action, most of which has already been provided. I would waive compliance with the deemed undertaking rule in the present circumstances. There is also before the court a letter from counsel for Great West Life indicating they do not oppose use of the documentation from the disability action, in the present proceeding. This is important because the purpose of the deemed undertaking rule is to protect the privacy interests of parties in other actions who have been compelled to produce documentation. The disability insurer is not asserting such privacy rights in the present proceeding.

[10] Prior to the settlement of the disability action, Great West Life, with the participation of the defendants in the present action, sought an order from the court requiring the disability action and the present tort action to be tried together and to have the medical reports and discoveries held concurrently and used jointly in the two actions. This extraordinary request was dismissed by my colleague Phillips J. without published reasons. It was suggested that Phillips J. based his decision in some part on the deemed undertaking rule and used that rule as a reason to dismiss the insurer’s motion. On my review of the matter, I am not persuaded that Phillips J. made any such ruling. There were many reasons to dismiss that motion besides the deemed undertaking rule. I hold that no issue estoppel arises.

[11] I exercise my discretion to order production to the defendants of the requested additional documentation, noted above, from the prior disability action, that is in the possession of plaintiff’s counsel.

[12] Counsel advise that a further pre-trial in this case is scheduled in the very near future. This ruling is not intended to restrict any orders the pre-trial judge may choose to make under Rule 50.07(1)(c) or which the trial judge may ultimately make at a trial management conference or at trial. The parties are encouraged to attempt to agree on production issues in relation to evidence that may be currently subject to litigation privilege but is expected to be canvassed at trial. The goal should be to avoid trial delays while such evidence may need to be obtained, uploaded to the CaseLines system and reviewed by the court and by counsel.

[13] Costs of this motion will be costs in the cause.

Date: February 14, 2022 Justice Charles T. Hackland Released: February 14, 2022